Euvale Pty Ltd v Kaybank Pty Ltd No. DCCIV-98-331 Judgment No. D130

EUVALE PTY LTD v KAYBANK PTY LTD
[1999] SADC 130

Judge Anderson
Civil

This is an appeal from an order of a Master of this Court whereby he granted orders that the proceedings herein be stayed pending their removal to the Supreme Court for the purpose of a cross-vesting application to transfer them to Queensland. That order was made on 15 July 1999.
On 18 August 1999 the Plaintiff filed a Notice of Appeal from that order. It also sought that the time within which an appeal may be lodged be extended. I made such an order at the outset of the appeal hearing on 15 September 1999.
The history of this matter is well encapsulated in some interim reasons delivered by the Master on 28 October 1998 from which I take the following:
“The plaintiff issued the summons and Statement of Claim on the 10th March. The plaintiff was then not legally represented. Mr Fardone of Fardone & Co, solicitors, filed an notice of acting for the plaintiff on the 29th July and he presently acts for the plaintiff.
In general terms the plaintiff’s claim against the defendant relates to the purchase by the plaintiff from the defendant of a unit in a block referred to as “The K Resort” in Surfers Paradise, Queensland. The plaintiff has alleged that various representations were made by the defendant through its agents in relation to the rental income which was anticipated would be generated by the unit and the capital gains profit from increasing value of the unit which could be expected.
The plaintiff has alleged that the income generated from the unit was much less than the defendant had projected and that the value of the unit has not increased but in fact decreased since it was purchased by the plaintiff in April 1995 for $187,000.
The plaintiff has sought to recover from the defendant $75,000 damaged.”
The Defendant’s application for a stay was lodged on 12 June 1998, supported by affidavits. An affidavit in reply was filed and subsequently the Master correctly required that a Defence be filed in order that the precise nature of the dispute was identified.
It was accepted by counsel, Mr Patel for the Appellant and Dr Baxter for the Respondent, that where, as here, there is an appeal against the exercise of a discretion, the principles enunciated in House v The King (1936) 55 CLR 499 were applicable.
At p504, Dixon, Evatt and McTiernan JJ said:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matter to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” (emphasis added)
The application before the Master was brought pursuant to s20 of the Service and Execution of Process Act 1992. The relevant parts of the section are:
(1).... This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue.
(2).... The person served may apply to the court of issue for an order staying the proceedings.
(3).... The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
(4).... That the matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
(a).... the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
(b)     the place where the subject matter of the proceeding is situated; and
(c).... the financial circumstances of the parties, so far as the court is aware of them; and
(d)     any agreement between the parties about the court or place in which the proceeding should be instituted; and
(e).... the law that would be most appropriate to apply in the proceeding; and
(f)     whether a related or similar proceeding has been commenced against the person served or another person;
but do not include the fact that the proceeding was commenced in the place of issue.
(5).... The court’s order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense.
(6)     .......
(7)     .......
(8)     .......
(9).... This section does not affect the court’s power to stay a proceeding on a ground other than the ground mentioned in subsection (3).
(10).. This section does not affect the operation of:
(a).... the Jurisdiction of Courts (Cross-vesting) Act 1987; or
(b)     a corresponding law of a State.”
The Master correctly identified that the appropriate test in such an application is as set out by Gibbs J in Cope Allman (Australia) Ltd v Celermajer (1968) 11 FLR 488 @ 494 where he said:
“Before I may decline to exercise jurisdiction and deny to the plaintiff its prima facie right to proceed in this Court I must be satisfied that there will be something amounting to vexation, oppression or injustice to the defendant.”
The Master found that there were no issues of vexation or oppression in this matter.
Mr Patel did not cavil with that finding. He attacked the Master’s finding that to allow the action to proceed in this State would be an injustice to the defendant.
The essence of the alleged injustice to the Plaintiff/appellant is said by Mr Patel to be the alleged greater financial burden upon that party as a consequence of the Master’s order. There is no evidence as to relative financial strength. The Plaintiff is a solvent business and there is nothing to suggest that the Defendant is not also solvent. In reality nothing is known of the financial resources of the Defendant in any detail.
The alleged injustice includes the greater difficulty and likely expense which the Plaintiff will have in preparing and conducting its case in either the Supreme or District Court at Southport in Queensland.
When coupled with the objective matters considered by the Master as required by s20 of the Service and Execution of Process Act, it is not possible to say that the Master was in error as to all of the matters which he considered to be relevant and the manner in which he then exercised his discretion.
In finding that this was a case almost totally connected with Queensland, except for the directors of the Plaintiff, he was obviously correct. Even those who are to give expert evidence on behalf of the Plaintiff will, of necessity, be found in Queensland.
I can find no error in the manner in which he considered all relevant matters. I am not able, in such circumstances, to simply substitute my view for that of the Master, even were I so inclined.
In my opinion, the Master was correct. This is essentially a Queensland case and accepting that the time to trial is as for South Australia, I am unable to say that he was in error.
The appeal is refused. I shall hear counsel as to costs.

[1999] SADC 130

8 October 1999